Summary: The Council was at fault for failing to find education for
Mrs X’s son after he moved into its area. This caused him an injustice. Mrs X was also caused avoidable distress, as she went to significant efforts trying to secure education for her son. The Council has agreed take action to remedy their personal injustice, and it will take steps to improve its service.

The complaint

1. The complainant, whom I refer to as Mrs X, moved into the Council’s area with her family in November 2023. This included her son, Y, who has special educational needs and – before the move – went to a special school in a different area of the country.
2. Mrs X complains that the Council failed to find a new school for Y after he moved and left him without education.
3. Mrs X also complains that, when the Council arranged some home tuition for Y in March 2024, this was not enough to meet his needs.
4. Mrs X says this matter has caused distress to the whole family and has led to her losing her job.

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The Ombudsman’s role and powers

5. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
6. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. We also cannot investigate a complaint if in doing so we would overlap with the role of a tribunal to decide something which has been or could have been referred to it to resolve using its own powers. (Local Government Act 1974, section 26(6)(a), as amended)
7. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
8. If we are satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)
9. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

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How I considered this complaint

10. I considered:
• Information from Mrs X and the Council.
• Relevant law and government guidance.
• Our guidance on remedies.
11. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

The Council’s responsibilities

The SEND code of practice

12. A child with special educational needs may have an education, health and care (EHC) plan. This document sets out their needs and what arrangements should be made to meet them.
13. The EHC plan is set out in sections, including section F (the provision needed by the child) and section I (the name of the educational placement).
14. Councils have a duty to make sure children receive the provision set out in section F of their EHC plans. This provision should be in place as soon as the final EHC plan is issued.
15. When a child moves between council areas, arrangements must still be made for them to attend the placement named in their EHC plan, unless this would be impractical.
16. If their attendance at the named placement would be impractical, the new council must place them temporarily at another appropriate educational institution until it formally amends their EHC plan (and names a new placement).

Alternative provision

17. Councils must arrange suitable, full-time education for children who are out of school because of exclusion, illness or for other reasons, if they would not receive suitable education without such arrangements (Education Act 1996, section 19).
18. We refer to this as ‘section 19’ or ‘alternative’ provision.
19. While there is no statutory requirement for when suitable alternative provision should begin (other than for children who have been excluded from school), councils should ensure that arrangements are made as quickly as possible. (Statutory guidance, ‘Alternative provision’)

What happened

20. Mrs X and Y moved into the Council’s area in November 2023. Y had an EHC plan from a different council, naming a special school in the area he had just moved from. This school was over 200 miles away.
21. The Council found out about Y moving into its area in early December. It began consulting new schools for him straight away. However, it was unsuccessful. Its preferred school – and others – either were oversubscribed or could not meet Y’s needs.
22. In early January 2024, the Council suggested that Y have some home tuition while he was waiting for a new placement. Mrs X agreed and asked that the tuition be full-time. The Council contacted an external provider to arrange the tuition.
23. Later the same month, Mrs X made a complaint to the Council. She said Y remained without education.
24. The Council responded in mid-February. It accepted that its communication with Mrs X had been poor, and that it had not provided any education to Y. It apologised and said it would deliver ten hours of home tuition to him each week.
25. Shortly afterwards, the Council issued Y’s amended EHC plan. Instead of a placement, it named ‘education other than at school’ (EOTAS). It did not specify how this package would be delivered.
26. The Council attempted to source tuition from two different providers, but they could only offer this online. In the absence of anything else, Mrs X accepted this in early March.
27. In mid-March, the Council identified another provider, which agreed to deliver one-to-one tuition to Y. This began in late March. However, this was only for four hours a week. The provider said it may have been able to increase this after two months.
28. In May, following Mrs X’s appeal to the SEND Tribunal, Y ended up starting at her preferred school.

My findings

29. The Council had three relevant duties to Y when he moved into its area.
• The first was to amend his EHC plan, naming a new placement.
• The second – as his existing placement was too far away to travel to – was to temporarily place him somewhere else pending the EHC plan review.
• The third, if no temporary placement was available, was to deliver alternative provision to him ‘as quickly as possible’ (as he had no education available to him).
30. The Council did amend Y’s EHC plan, naming EOTAS. Mrs X was unhappy with this, but she appealed it to the SEND Tribunal, so I cannot comment on it.
31. When the Council named EOTAS in Y’s EHC plan (in February 2024), it ceased to be ‘alternative provision’ and instead became ‘special educational provision’. This means that, from that point on, I cannot comment on its suitability (including whether the number of hours of home tuition was enough). This would have been a matter for the Tribunal, had Mrs X’s appeal made it to a hearing.
32. However, even without commenting on these things, I am satisfied that the Council failed to:
• Put Y in a temporary placement while it amended his EHC plan.
• Start looking for alternative provision for him ‘as quickly as possible’ (it did not start for a month).
• Deliver alternative provision in the period before it issued the amended EHC plan.
• Immediately put EOTAS provision in place after issuing the EHC plan.
33. The Council went to significant efforts to find a placement for Y and, eventually, to find home tuition. But it was repeatedly told by schools and tuition providers that they could not deliver what Y needed.
34. Nonetheless, ‘service failure’ can still happen when a council fails to provide a service as it should have done because of circumstances outside its control. We do not need to show any blame, intent, flawed procedure or bad faith by a council to say service failure has occurred.
35. In Y’s case, he needed education, which it was the Council’s duty to provide. The Council has not denied this. And, despite its efforts, it did not deliver this education between early December 2023 and late March 2024. Although not all of this was entirely within the Council’s control, this remains a service failure, for which it was at fault.
36. I cannot say the extent to which the Council’s failures up to (but not beyond) late March 2024 contributed to Mrs X losing her job. However, I am satisfied that Y suffered an injustice, because he missed around a term’s worth of education. And Mrs X also likely suffered avoidable distress from the efforts she made to secure education for him.
37. The Council should take action to remedy the personal injustice caused to Mrs X and Y. It should also take steps to improve its service.

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Agreed action

38. Within a month, the Council has agreed to:
• Make a symbolic payment to Mrs X of £500 to recognise the distress she likely experienced from trying to secure education for Y.
• Make a symbolic payment to Y of £2,000 to recognise the injustice that he suffered from being without education for a school term.
39. Within three months, the Council has agreed to send us an action plan which sets out how, in future, it will overcome similar problems in delivering education to young people who have moved into its area.
40. The Council will provide us with evidence it has done these things.

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Final decision

41. The Council was at fault, and this caused injustice to Mrs X and Y.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman